April 30, 2010 11:27:17 pm
Social science has recorded,and tried to understand,the incidence of transformative processes,including revolutions; scholars have sought to nuance the idea and differentiate between political and social revolutions. If the current high tide of judicialisation of politics in Pakistan is anything to go by,we might have to add another category to the literature on transformative processes judicial revolution.
But lets start with some facts.
After the February 2008 elections,there was an overall demand from all political parties to revisit the Constitution and cleanse it of the toxics put in it by military dictators. A committee was formed with representatives from almost all political parties. The debate was intensive,spanned some nine months and reviewed over 100 clauses of the Constitution. The result: the Eighteenth Amendment.
The procedure is not as rigid as envisaged by the United States Constitution but difficult enough,requiring two-thirds majority of both Houses of Parliament,to push an amendment through. The reason: an amendment,as opposed to simple legislation,must reflect the broadest possible will of the people through their representatives.
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End of the story? No. One of the changes,the new Article 175,which deals with the appointment of judges,has become the red rag for the judicial bull. Instead of the Chief Justice of Pakistan deciding in his infinite wisdom who to appoint as a judge of the superior courts,there shall henceforth be a two-tier process. A judicial commission shall nominate judges who shall be appointed,unless vetoed with a three-fourths majority by a parliamentary commission.
This new provision regarding the appointment of judges has now been challenged in the Supreme Court as a violation of the basic structure of the Constitution. Such challenges are now routine but what makes these particular ones worth noting is that they are filed not only by the usual legal flotsam but also by the Supreme Court Bar Association.
Reinforcements have come from one media group which has decided to headline and front-page warnings of an impending judicial crisis when there is none in sight. And the rest of the media,barring some exceptions,instead of checking the law,has blithely and blindly followed the trend.
The question: can the Pakistani Supreme Court strike down a constitutional amendment? The answer: yes,it can. The reference: the Indian Supreme Courts judgment in the Kesavananda Bharati case. Of course,the reference completely ignores the fact that this judgment was rejected,by name,by the Pakistan Supreme Court less than five years ago! The courts argument: The position adopted by the Indian Supreme Court in Kesavananda Bharati case is not necessarily a doctrine which can be applied unthinkingly to Pakistan. Pakistan has its own unique political history and its own unique judicial history.
Despite the transparent attempts to whip up hysteria,the hope was that better sense would prevail and the judiciary would resist the calls to challenge Parliaments turf. This impression was reinforced by the fact that the bench announced by the chief justice to deal with the Eighteenth Amendment was composed of five members and hence bound by the 2005 judgment in which the Supreme Court had unequivocally stated that it did not have the power to strike down a constitutional amendment.
The impression was short-lived. On its very first meeting the five-member bench threw the gauntlet by requesting the chief justice to form a bigger bench,if not to convene the full court to deal with this issue. Whither now? One thing is clear. If the chief justice grants the bench its request,the court would be on a warpath with Parliament. One can say,somewhat indignantly,that Pakistan faces bigger problems than the method by which judges are to be appointed; or,even,that the Eighteenth Amendment represents the single biggest gain for parliamentary democracy since the promulgation of the 1973 Constitution.
But there are more cogent arguments against what the judiciary might be spoiling for. For one,framing the Constitution is the preserve of Parliament. The judiciary can judge and interpret,not frame. There are precedents in case law to that effect. But more than that,the important question is,where must the judiciary draw the line? If judges have to go beyond interpreting into the domain of framing the Constitution,then we might as well send the legislators home.
Some members of the bar and former judges have begun trotting the argument that legislators do not have the capacity to judge the judges or understand subtleties. We have heard this argument before,except,until now,it was made by the army to justify its coups. One jurist friend dryly remarked that this deliberate creation of a crisis leaves one with the impression of a temperamental diva,unable to come to grips with the fact that the camera is no longer focused on her fading charms.
The writer is national affairs editor,Newsweek Pakistan
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